2021 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4 - Dissolution of Marriage
Section 40-4-5 - Dissolution of marriage; jurisdiction; domicile.

The district court has jurisdiction to decree a dissolution of marriage when at the time of filing the petition either party has resided in this state for at least six months immediately preceding the date of the filing and has a domicile in New Mexico. As used in this section, "domicile" means that the person to whom it applies:

A. is physically present in this state and has a place of residence in this state;

B. has a present intention in good faith to reside in this state permanently or indefinitely;

C. provided further, persons serving in any military branch of the United States government who have been continuously stationed in any military base or installation in New Mexico for such period of six months shall, for the purposes hereof, be deemed to have a domicile of the state and county where such military base or installation is located; and

D. provided further, any person who had resided continuously in New Mexico for at least six months immediately prior to his or his spouse's entry into any military branch of the United States government, who is stationed or whose spouse is stationed at any military base or installation outside of New Mexico and who has a present intention in good faith to return and to reside in this state permanently or indefinitely, shall for the purposes hereof, be deemed to have a domicile of the state and county of his residence immediately prior to his or his spouse's entry into the military branch.

History: 1953 Comp., § 22-7-4, enacted by Laws 1971, ch. 273, § 1; 1973, ch. 319, § 5; 1977, ch. 101, § 1.

I. GENERAL CONSIDERATION.

Purpose of requiring domicile within the state for a specified period of time as a jurisdictional prerequisite to obtaining a divorce is to prevent divorce-minded couples from shopping for favorable residence requirements. Hagan v. Hardwick, 1981-NMSC-002, 95 N.M. 517, 624 P.2d 26.

The public policy of protecting innocent parties in divorce action cannot give substance to a nullity. The policy of New Mexico is that marriage bonds shall be severed only on the basis set forth in the statute. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

This section is not an attempt to convert divorce into transitory, in personam action, nor is its objective the luring of divorce-shopping couples to this state. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

This section addresses subject matter jurisdiction and is not concerned with personal jurisdiction over an absent spouse. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981.

There are three jurisdictional essentials necessary to validity of every judgment: jurisdiction of parties, jurisdiction of subject matter and power or authority to decide the particular matter presented. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

This statute grounds jurisdiction on strength of facts connecting the parties to the state of the forum. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Right to apply for or obtain divorce is accorded only by statute. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

Right to obtain divorce is purely statutory and it follows that the state may determine who may use its courts for such purpose. Chaney v. Chaney, 1949-NMSC-005, 53 N.M. 66, 201 P.2d 782.

Domicile is prerequisite to divorce jurisdiction necessary for recognition under the full faith and credit clause. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Since statute's residence requirement not met, the trial court lacked jurisdiction and the decree of divorce was void. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

Residence for required period of time is necessary jurisdictional prerequisite of divorce in New Mexico, and this jurisdictional prerequisite being absent, the decree of divorce was a nullity. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

Six-month continuous physical presence not required. — There is nothing in the terms of this section indicating a legislative intent to require continuous physical presence within the state for six months prior to initiation of proceedings. Hagan v. Hardwick, 1981-NMSC-002, 95 N.M. 517, 624 P.2d 26.

Divorce jurisdiction can be founded on circumstances other than domicile. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Holding that a domiciliary intent could be conclusively presumed from a period of residence was tantamount to a repudiation of the theory that domicile is the only jurisdictional basis for divorce. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

It is within the power of the legislature to establish reasonable bases of jurisdiction for divorce other than domicile. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Court has no discretionary right to deny divorce where statutory ground is shown to exist. Buckner v. Buckner, 1981-NMSC-007, 95 N.M. 337, 622 P.2d 242.

Orders regarding child custody, etc., effective though court without jurisdiction to grant divorce. — Although the parties are not divorced due to the trial court's lack of jurisdiction as required in this section, it does not follow that the provisions pertaining to custody, child support and visitation are void. Where the trial court had jurisdiction over these issues, and no issue on the appeal involved the court's orders concerning the children, the orders of the court pertaining to custody, support and maintenance and visitation remain in effect and are binding on the parties unless modified by further order of the trial court. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

No deprivation of jurisdiction by cohabitation. — Evidence of cohabitation by the parties after filing a petition for divorce based on incompatibility did not deprive the court of jurisdiction, where the wife did not file an answer to the husband's complaint nor contest his allegation that the parties were in fact incompatible. Joy v. Joy, 1987-NMCA-031, 105 N.M. 571, 734 P.2d 811.

Allegation of residence implies good faith. — An allegation of residence for the required time, in a divorce complaint, necessarily implies residence "in good faith." Klasner v. Klasner, 1918-NMSC-021, 23 N.M. 627, 170 P. 745.

Resident of Los Alamos project does not meet residence requirement. — A person who lives within condemned area of Los Alamos project does not meet the residence requirements of this section of the divorce laws. Chaney v. Chaney, 1949-NMSC-005, 53 N.M. 66, 201 P.2d 782.

Residence as question of fact. — The residence requirement specified by this section, although jurisdictional, presents a question of fact for determination by the trial court, and where the trial court makes an affirmative finding of the jurisdictional fact of residence upon evidence which is substantial, the finding will not be overturned. Davey v. Davey, 1967-NMSC-002, 77 N.M. 303, 422 P.2d 38.

More than mere physical presence of divorcing couple within state should underlie divorce jurisdiction. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Existence of residence with domiciliary intent for divorce purposes is centered upon the "integrity" of the intent of the parties concerned. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Decree not subject to collateral attack in sister state. — Divorce decree, wherein the defendant appeared and had an opportunity to question the jurisdiction of the court, may not be attacked by a third party in a sister state since it is not subject to collateral attack in this state. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Party cannot repudiate court's jurisdiction after obtaining desired relief. — A party cannot invoke the jurisdiction of a court for the purpose of securing important rights from his adversary through its judgment, and, after having obtained the relief desired, repudiate the action of the court on the ground that the court was without jurisdiction. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410.

Amendment of pleadings to show residence. — Where the required residence of the plaintiff in a divorce suit was omitted from the allegations of the complaint, but was fully litigated, without objection, it may be supplied by amendment of the pleadings on appeal. Canavan v. Canavan, 1913-NMSC-013, 17 N.M. 503, 131 P. 493.

Judgment as coram non judice where plaintiff not resident. — Entry of judgment is coram non judice where the plaintiff is not a bona fide resident of the state since the trial court is without jurisdiction to enter a judgment in such a case. Allen v. Allen, 1948-NMSC-024, 52 N.M. 174, 194 P.2d 270.

Jurisdiction over community personalty located on Indian reservation. — A district court has jurisdiction to determine the disposition of community personal property located on an Indian reservation when one of the parties is an Indian, but has submitted to the jurisdiction of the court to dissolve his marriage. Lonewolf v. Lonewolf, 1982-NMSC-152, 99 N.M. 300, 657 P.2d 627, appeal dismissed, 467 U.S. 1223, 104 S. Ct. 2672, 81 L. Ed. 2d 869 (1984).

Evidence sufficient to support jurisdiction. — Where the evidence showed that wife lived in New Mexico for six months by the time she filed her second petition for divorce, and she opened bank accounts here, registered to vote, registered her car, and lived here, such acts demonstrated both her physical presence here and her concurrent intention to make New Mexico her home, and absent any evidence that she established a domicile in some other state when she filed her divorce action, there was no error in the trial court's determination of jurisdiction over wife. Fenner v. Fenner, 1987-NMCA-066, 106 N.M. 36, 738 P.2d 908, cert. denied, 106 N.M. 7, 738 P.2d 125.

II. MILITARY PERSONNEL.

Military residence proviso not unconstitutional. — Subsection three of this act (Laws 1951, ch. 107, § 1, now repealed, adding the military residence proviso) is not violative of N.M. Const., art. IV, § 24, prohibiting local or special laws and guaranteeing equal protection of the laws. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Legislature may constitutionally confer status of resident for divorce purposes upon those continuously stationed within this state by reason of military assignment. Wilson v. Wilson, 1954-NMSC-069, 58 N.M. 411, 272 P.2d 319.

Provisions for servicemen not unlawful encroachment on federal jurisdiction. — This section in providing for jurisdiction in New Mexico state courts over divorce proceedings involving servicemen is not an unlawful encroachment on federal jurisdiction. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Presumption of domicile where continuously stationed. — Upon proof of continuous station pursuant to this section, the presumption of domicile is conclusive; however, evidence directed to the issue of continuous station can destroy this presumption. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Upon proof of continuous station pursuant to this section, a conclusive presumption of domicile arises. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

State has substantial interest in service families stationed in the state. — When service families have resided in this jurisdiction for one year (now six months), the state has a substantial interest in their domestic relations. Wallace v. Wallace, 1958-NMSC-014, 63 N.M. 414, 320 P.2d 1020.

Continuously stationed deemed resident with domiciliary intent. — A member of the military "continuously stationed" at a base in New Mexico for one year (now six months), for the purposes of this act (Laws 1951, ch. 107, § 1, now repealed), shall be deemed a resident of New Mexico with domiciliary intent, a necessary jurisdictional prerequisite of divorce in New Mexico. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Good faith presumed where continuously stationed. — When a member of the military is here under orders, his "good faith" cannot be questioned and will be presumed upon showing that he has been "continuously stationed" in the state for the year next preceding the filing of his complaint. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Residency requirements met where individual absent several months. — Where individual has 13 months of permanent station in New Mexico with physical presence during the first seven months, physical absence during the next six months, and then a physical return to New Mexico, he is considered continuously stationed in the military base or installation in the state of New Mexico for one year (now six months) next preceding the filing of his complaint sufficient to satisfy residency requirement of Subsection C to give New Mexico courts jurisdiction in divorce proceedings. Crownover v. Crownover, 1954-NMSC-092, 58 N.M. 597, 274 P.2d 127.

Military retirement separate property where no residence established. — Subsection C of this section relates only to the jurisdictional requirement of residence for the maintenance of an action for the dissolution of the bonds of matrimony. Where plaintiff claimed that defendant became domiciled in New Mexico pursuant to the provisions of what is now Subsection C, by reason of being stationed here on two occasions, and that the portion of his military retirement income earned while stationed in this state was thus community property under New Mexico law, although defendant at no time during his many years of military service intended to establish or did establish his domicile or residence in New Mexico, the trial court's holding that defendant's retirement income was his separate property was affirmed. Roebuck v. Roebuck, 1974-NMSC-099, 87 N.M. 96, 529 P.2d 762.

Law reviews. — For article, "Annulment of Marriages in New Mexico," see 1 Nat. Resources J. 146 (1961).

For article, "Annulment of Marriages in New Mexico: Part II - Proposed Statute," see 2 Nat. Resources J. 270 (1962).

For symposium, "Equal Rights in Divorce and Separation," see 3 N.M.L. Rev. 118 (1973).

For article, "Child Support Enforcement: The New Mexico Experience," see 9 N.M.L. Rev. 25 (1978-79).

For annual survey of New Mexico law relating to domestic relations, see 12 N.M.L. Rev. 325 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 24 Am. Jur. 2d Divorce and Separation §§ 201 to 220.

Extra-territorial recognition and effect, as regards marital status, of a decree of divorce or separation rendered in a state or country in which neither of the parties was domiciled, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Duty to recognize and give effect to decrees of divorce rendered in other states, or in foreign country, as affected by lack of domicil at divorce forum, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Length or duration of domicil, as distinguished from fact of domicil, as a jurisdictional matter in divorce action, 2 A.L.R.2d 291.

False allegation of plaintiff's domicil or residence in the state as a ground for vacation of default decree of divorce, 6 A.L.R.2d 596.

Residence or domicile, for purpose of divorce action, of one in armed forces, 21 A.L.R.2d 1163.

Nature and location of one's business or calling as element in determining domicil in divorce cases, 36 A.L.R.2d 756.

Validity of statute imposing durational residency requirements for divorce applicants, 57 A.L.R.3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce of servicemen, 73 A.L.R.3d 431.

Vacating or setting aside divorce decree after remarriage of party, 17 A.L.R.4th 1153.

27A C.J.S. Divorce §§ 99 to 105.